C-124/81

APPLICATION for a declaration that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 30 of the EEC Treaty by making imports of UHT milk and cream subject to measures having an effect equivalent to quantitative restrictions on imports,

THE COURT

composed of: J. Mertens de Wilmars, President, P. Pescatore, A. O'Keeffe, U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco, T. Koopmans, O. Due and Y. Galmot, Judges,

Advocate General : P. VerLoren van Themaat Registrar: P. Heim

gives the following

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(b) Legislation relating to Northern Cream may also be subjected to the same Ireland: treatment.

Provisions similar to those described in The UHT treatment is among those used the preceding paragraph apply in in several Member States of the Northern Ireland by virtue of the Community according to standards combined effect of the Landing of which, if not identical, are at least Carcases and Animal Products Order similar. (Northern Ireland) 1970 (SI 1970 No

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Licences are issued by the local authority B — Packaging of the area in which such premises are situated (Article 3 (3) of the same Order). (a) Legislation applicable to England and Wales: (c) Until 1981 there were no regu­ Regulation 30 (2) of the Milk and lations relating to the packaging of UHT Dairies (General) Regulations 1959 (SI milk in Northern Ireland, since the sale 1959 No 277), as amended by the Milk of such milk was prohibited there. Since and Dairies (General) (Amendment) 1981 the packaging of UHT milk in Regulations 1977 (SI 1977 No 171) Northern Ireland is governed by Regu­ provides as follows : lation 27 of the Milk Regulations (Northern Ireland) 1981 (SR 1981 No 234). "Except in the case of a bottle or carton in which cream is imported and is intended to be delivered to consumers, C — Sale every person shall cause every bottle or carton in which he intends to deliver milk to consumers to be filled and closed (a) Legislation applicable to England on registered premises and Wales:

Registered premises means premises Sections 35 to 37 of the Food and Drugs registered by a local authority under Part Act 1955, combined with the Milk III of the 1959 regulations. A local (Special Designations) Regulations 1977

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3. Procedure resentative reaffirmed that the measures were justified on health grounds.

4. By a letter dated 12 January 1981 the Can statistics be supplied on the United Kingdom Permanent Rep­ production of UHT milk and cream in

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the Member States and on the trade in (c) Questions addressed to the those products between the various Commission: Member States of the Community? Can the Commission give details of the Can statistics be supplied on the relative criteria on which it relies in support of its share of UHT milk and cream in the statement that the health rules in force in consumption of dairy products in the the various Member States relating to different Member States of the UHT treatment and the packaging of Community? milk are "similar" or "at least equivalent" to those in force in the United Kingdom? Can statistics be supplied on the respective shares in the consumption of UHT milk and cream in the United Can the Commission give the Court Kingdom attributable to imports and to information regarding the conditions local production (if possible, with imposed on the importation of UHT separate figures for each of the milk by the other Member States? constituent parts of the United Kingdom, England, Wales, Scotland and Northern Can the Commission indicate how i:ar Ireland, and if appropriate for British work has progressed on its "proposals exports of those products to markets for a Council directive laying down the other than the national market) ? health requirements which must be met by heat-treated milk intended for direct human consumption"? (b) Questions addressed to the United Kingdom:

the United Kingdom, in the interests of requirement, even as a pure formality, of animal and public health and consumer import licences in intra-Community protection, pending the introduction of trade, such as the licence required in the agreed Community measures, to main­ present case with regard to milk, falls tain its own system of control." For the within the prohibition contained in reasons given, the United Kingdom Article 30. Government submits that it is justified under the Treaty in so doing. Moreover, the Commission submits that the apparently non-discriminatory nature The Government of the French Republic of the marketing requirements (packag­ claims that the Court should : ing and sale) in no way prevents those measures from falling under Article 30 of 1. Uphold the conclusions of the Com­ the EEC Treaty. In that respect, the mission of the European Communi­ Commission bases its argument on the ties; judgment of the Court of 20 February 2. Declare that by adopting and main­ 1979 in Case 120/78 (Rewe-Zentrale taining in force all the legislative v Bundesmonopolverwaltung für Brannt- provisions cited by the Commission, wein [1979] ECR 649). including all amendments to date, the United Kingdom has failed to fulfil its · 2. As regards the possible justification obligations under the Treaty; of those measures in the light of Article 36 of the EEC Treaty, the Commission 3. Order the United Kingdom to pay the distinguishes between two different costs, including those incurred by the cases; on the one hand the case of intervener. "general open licences", . and on the other hand the case of "specific licences". Ill — Summary of the sub­ missions and arguments of (a) It is the Commission's under­ the parties standing that in the case of "general open licences" the appropriate United 1. Commission of the European Com- Kingdom authority requires, for the munities importation of a category of products, a licence which, in fact, takes the form of The Commission considers that the a published notice laying down the effect of all the regulations adopted by general* conditions to which imports are the United Kingdom is to restrict the subject. ' In such a case, if those importation of UHT milk on to the conditions are satisfied, importers may territory of the United Kingdom. import the products without being required to apply for a licence for each 1. Appraising those measures in the individual operation (specific licence). light of Article 30 of the EEC Treaty, The Commission considers that, in the the Commission considers that those absence of the harmonization of health provisions constitute a hindrance to standards, such a system must be imports so as to fall within the regarded as being contrary to Article 30 prohibition in Article 30 of the EEC of the Treaty but, however, justified on Treaty on measures having an effect grounds of the protection of the health equivalent to quantitative restrictions. of animals under Article 36 if:

It does not require importers, who satisfy Relying on the judgments of the Court the criteria, to obtain any further licence of 20 May 1976 in Case 104/75 (De or authorization; Peijper [1976] ECR 613) and of 8 November 1979 in Case 251/78 (Deukavit v Minister fih Landwirtschaft [1979] ECR 3369), the Commission It is shown to be neither excessive nor considers that the United Kingdom, with arbitrary and thus justified under Article a view to lightening the administration's 36. burden, may not subject importers to requirements which are more restrictive than necessary and that the United (b) On the other hand the system of Kingdom authorities might achieve the specific licences requires each importer legitimate objective of protecting the health of animals and humans by to apply for the grant of a licence or resorting to measures which are less authorization in respect of each import­ restrictive of the free movement of ation and is by its veiy nature open to goods. unnecessary delay on the part of the importing Member State and is therefore not justified under Article 36. According to the Commission, that assertion is borne out in the present case by the fact In that connection the Commission that such a system of specific licences envisages the possibility of the United provides no greater health guarantee Kingdom authorities' carrying out checks than the system of general open licences. on the premises of UHT milk producers established in other Member States, who wish to export to the United Kingdom whilst observing the regulations in force In fact, the Commission considers that in that Member State. The Commission the United Kingdom authorities could points out that such checks are carried perfectly well store at a central point the out by British health inspectors (in information necessary for the protection particular in Argentina) in the premises of public health gathered from health used for slaughtering and packaging certificates accompanying each import meat intended for the United Kingdom consignment. In fact, the United market. For that reason, the Commission Kingdom authorities, which have the considers that a system of imports power to determine the contents of such dependent on the delivery of health certi­ certificates (provided that the infor­ ficates, drawn up, as appropriate, after mation required concerns only the inspection of producers' premises, by essential features of production, treat­ inspectors of the United Kingdom auth­ ment and distribution of the milk), orities, would be able to ensure all the could, with the help of a central point necessary safeguards, without disprop­ for monitoring the information gathered, ortionately affecting freedom of trade. follow and, if necessary, withdraw from The Commission points out, moreover, the market, any imported consignment that such a system could be of milk which is suspect from the health supplemented by random inspections point of view. For that reason the carried out on imported consignments. Commission considers unfounded the United Kingdom's argument that individual or specific licences are necessary to enable any milk coming 3. Apart from the case, explained from an infected area to be traced above, where merely a general open quickly after importation. licence is required, the Commission

For that reason the Commission considers that, for the purpose of In the Commission's opinion such a protecting public health, the same system is found to be satisfactory in all criteria may not be applied to a product Member States where it is operated and such as milk, which is widely consumed the Commission states that, contrary to and the characteristics of which are well the United Kingdom's assertion, neither established, and to entirely new and only Belgium nor Denmark operates a partly tested products such as the licensing system for imports. Conse­ pesticides and artificial preservatives quently, only the United Kingdom and which formed the subject-matter of the Ireland subject imports of milk to a judgments of the Court of 5 February system as restrictive as the system under 1981 in Case 53/80 (Officier van Justitie challenge in the present proceedings and, v Koninklijke Kaasfabriek Eyssen BV in that respect, the Commission states [1981] ECR 409) and of 17 December that the possibility of proceedings against 1981 in Case 272/80 (Openbaar Ireland is at present under consideration. Ministerie v Frans-Nederlandse Maat- schappij voor Biologische Producten BV [1981] ECR 3277). The Commission rejects the comparison made by the United Kingdom to demonstrate the (b) Nor does the protection of human lawfulness of its restrictive measures health necessitate the operation of a because, inter alia, the production and

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sale of the chemical products at issue in disproportionate in relation to the those cases were totally prohibited on purpose to be achieved. the territory of the Member States concerned, which is not so in the present case. In support of that argument, the Commission points out that:

Furthermore, the Commission argues The system of import licences prior to that it is scientifically proven that a any entry of UHT milk on to the second UHT treatment of milk and daiiy territory of the United Kingdom does products is ineffective and thus useless to not enable the public health authorities eliminate dangerous substances which to satisfy themselves as to the non­ have resisted the first treatment. pathogenic quality of the milk intended However, it is principally on the for sale on the United Kingdom market. requirement of a second treatment that In fact, the Commission observes, first, the United Kingdom authorities are that no health inspection is carried out insisting to ensure the protection of by inspectors from the United Kingdom public health. For that reason the in the Member State or States seeking to Commission considers that the measures export and, secondly, that no inspection applied by the United Kingdom are may take place on the territory of the

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As to the admissibility of the (c) In the Commission's view, con­ Commission's application : sumer protection cannot be viewed separately from the question of public health. Consequently, hindrances to The United Kingdom initially claimed trade which could not be justified from that the Commission's application sought the point of view of public health cannot a declaration by the Court that the be justified by reference to the objective United Kingdom had failed to fulfil its of protecting consumers. In any case, the obligations under Article 30 of the

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As to the substance, the United Kingdom Government denies the breach of Article 30 of the EEC Treaty alleged by the Commission and maintains in any event that the health measures contested by the Commission are justified under Article 36 of the EEC Treaty. With that aim in mind the system of import licences was established. In practice, a licence is granted where the exporting State is able to certify (or where the importer is able to submit a certificate to the same effect) that the area of production of the milk for import­ After pointing out the high level of ation into the United Kingdom has been consumption of liquid milk in the United free from foot-and-mouth disease for at Kingdom of 137.1 kg per head of popu­ least 12 months and that the milk has lation in 1978 — a figure which is only been pasteurized or heat-treated. In a exceeded by Ireland and places the case where the milk does not come from United Kingdom in second place as a an area which has been free of disease consumer of milk in the Community — for 12 months, the milk is accepted into and the need for strict standards of the United Kingdom if the importer is hygiene in view of the bacteriological able to prove that the milk has vulnerability and the large consumption undergone UHT treatment to 140 °C for of the product, the United Kingdom three seconds, which is a more stringent Government dwells on the long history requirement than the normal UHT since 1914 and the well-established treatment but one which is necessary to nature of regulations relating to the sale ensure the inactivation of the foot-and- of milk on its territory. mouth disease virus. A complete ban is

not considered necessary unless the a position to stop, at any point of entry United Kingdom authorities have reason of milk into the United Kingdom, to suspect that the disease is out of consignments accompanied by health control in the area of production. certificates of the exporting country which are no longer regarded as being valid owing to a subsequent disclosure that it is an area of infection. That system would be complicated and costly According to the United Kingdom whilst not offerring absolute safeguards Government, the system of individual from the point of view of health. For import licences is less burdensome than those reasons, the United Kingdom the Commission appears to think. In fact Government considers that the system of it is to the advantage of the trade that individual import licences is the most the health authorities of the exporting appropriate and safest, regard being had country, in the absence of standards to the objective pursued. Moreover, it common to the different producing adds that that system demonstrated its countries, should know exactly what is effectiveness when a foot-and-mouth required for importation into the United epidemic broke out in France in 1981 Kingdom before the milk is shipped. and during the current outbreak of the disease in Denmark. Finally it points out that it has never received complaints from importers that the system is slow or cumbersome. In particular, the applicants What is more, it is well established that in the Union Laitière Normande case, cattle infected with foot-and-mouth mentioned above, obtained such a disease may yield milk infected with the licence without any difficulty. The virus before outward symptoms become United Kingdom Government states evident. Milk from such cattle, having finally that, to its knowledge, other undergone only pasteurization, which Member States, namely Ireland, may not inactivate the virus, could well Denmark and Belgium, operate similar be already in transit, or actually licensing systems. imported into the United Kingdom before the disease had been identified in the cattle from which it came. It is therefore essential that the United Kingdom health authorities should be able at any time to trace any 2. The protection of human health consignment of imported milk and in the requires the United Kingdom authorities shortest time possible. Only a system of to make certain that milk, once it has individual or specific licences affords been imported, is suitable for human such a safeguard. Under a system of consumption, in the same way as they general open licences it would be control the quality of domestic possible to trace imported consignments production. only if, first, the customs authorities in all parts of the country operated for the health authorities a system of "immediate and continuous" notification of all imports and, secondly, if the health To that end, the United Kingdom authorities were able to notify to all legislation, which applies uniformly to customs authorities health information imported milk and to domestically- concerning all exporting countries so produced milk, stipulates that UHT milk that the customs authorities would be in may be sold for human consumption

It contends that, in the absence of 4. Alternatively, the United Kingdom common rules relating to the protection Government submits that the legislation of public health and consumers, it is for "clearly falls within the exemption the Member States to regulate all matters provided by Article 36 of the EEC relating to the production and marketing Treaty as being justified on grounds of of milk on their own territory. Obstacles the protection of life and health of to movement within the Community humans", which, under the case-law of resulting from the disparity of national the Court, would lift the prohibition laws relating to the marketing of milk contained in Article 30 by which its must be accepted in so far as those legislation might otherwise be caught. In provisions of national law may be that respect, the United Kingdom recognized as being necessary to satisfy Government emphasizes that the mandatory requirements relating to the measures in question are not dictated by protection of public health and consumer a requirement to lighten the adminis­ protection. tration's burden and reduce public expenditure but by a concern for effectiveness and health safety. For that reason it considers that the case-law of the Court as laid down in its judgments in Denkavit and de Peijper, and supported by the Opinion of Mi- Relying on the case-law of the Court Advocate General Mayras in the Union laid down in the judgments of 16 May Laitière Normande case, enables the 1979 in Case 2/78 (Commission v conclusion to be drawn, contrary to the Belgium [1979] ECR 1761) and of 20 Commission's argument, that a system of

Thus, it is clear from an article published in the "Revue laitière française" No 398 of June 1981, entitled "Recomman­ dations pour l'amélioration de la qualité The United Kingdom considers that the bactériologique du lait au niveau des primordial importance, in its eyes, of the laiteries" (Annex IV to the defence), that requirements of public health, which was a number of factors account for the recognized by the Court in its judgments deterioration of milk between farm and in the de Peijper case and Koninklijke creamery, including the high temperature Kaasfabriek and which the Commission of milk stored on the farm, the mixing of recalled in its observations in the milk of different quality, the frequency Biologische Producten case, compels it to of collections and the conditions under establish a system for the protection which collections are carried out of the consumer which affords the (whether refrigerated bulk tanks are used maximum safeguards for consumers in or not), the care with which containers accordance with the principle recognized and tankers are cleaned. That article, by the Court at paragraph 15 of its which dealt with production conditions judgment in the de Peijper case where it in France, indicates at least one held that ". . . it is for the Member fundamental difference between the States, within the limits imposed by the United Kingdom and its partners in the Treaty, to decide what degree of Community, namely that in the United protection they intend to assure (as Kingdom daily bulk collection is regards public health) and in particular "virtually universal" and, where it is not, how strict the checks to be carried out is carried out every two days after are to be." refrigerated storage of the milk, whilst in the other Member States, for example in France, at least according to the article, collections of raw milk are spread out sometimes at intervals as long as two or three days, that is to say six milkings, which poses a serious risk of spreading bacteria and, necessarily, leads to the production of UHT milk of mediocre In that connection, the United Kingdom quality (see Annex IV to the defence, p. states that, having regard to the bacterio­ 3, column 1, — Recommendations of the logical vulnerability of milk, it cannot Working Party of the Centre National content itself simply with a check carried de Coordination des Études et out in those places where the milk is Recherches sur la Nutrition et treated, as suggested by the Commission. l'Amélioration). Those threats to the In fact a strict control over the whole quality of the final product become yet production cycle of the milk is absolutely more serious if the milk intended for necessary in order to guarantee the UHT treatment has, prior to that quality of the final product sold for treatment, been pasteurized. The United consumption. In support of that Kingdom Government relies on two assertion, the United Kingdom put in

scientific articles, ' reproduced in human disease. In that respect it Annexes 4 and 5 to its rejoinder to show explains, furthermore, that the high that where enterotoxins are present in degree of reliability from the health pasteurized milk they may develop more point of view achieved by its dairy rapidly than if the milk had not been production is, likewise, partly due to the pasteurized, because pasteurization, structure and size of the dairy farms which succeeds in destroying most concerned (these are on average micro-organisms, enables the staphylo­ considerably larger than the average in cocci contained in the enterotoxins to the other Member States as the grow without competition in an almost comparative statistics set out in Annex sterile growth medium. III to the rejoinder show) which makes it easier to enforce rigorous compliance with the provisions in force. The United Kingdom states that it has no scientific Similarly, an article entitled "Incidence information available to it which would of enterotoxin-producing staphylococcus support the Commission's view that milk, aureus in UHT milk", published by in the other Member States, does not R. Eschement and W. Steur in 1981 constitute a source of diseases. It in "Öffentliches Gesundheitswesen" emphasizes that, at the Community level, (annexed to the defence), well there is no system for notifying highlighted the dangers of a deficient outbreaks of disease of the type supervision of the production cycle of mentioned in the publication referred to milk. In fact, that article, which related above and that, in the absence of reliable to an epidemic which broke out in the statistical information it cannot Federal Republic of Germany and understand how the Commission can poisoned 30 persons as a result of the assert without any scientific foundation presence of enterotoxins in UHT milk, that milk is far from being "a major shows that the possibility of milk which source of human disease". has been treated correctly being contaminated after heat treatment cannot be ruled out and that the organoleptic qualities of the contaminated milk need not necessarily be altered and thus the For that reason, the United Kingdom suspicion of the consumer is not aroused. maintains on the one hand that it is necessary for it to exercise a strict and all-embracing control over the production cycle and marketing of milk The United Kingdom Government states sold for consumption on its territory that it is only because of veiy strict and, on the other hand, that the exercise health precautions which have been of that control outside its territory is operated for many years by its auth­ virtually impossible. orities to supervise the production cycle of milk on its territory that that product no longer constitutes a major source of

Kingdom authorities, which obtain think and on no account could be supplies from 45 slaughterhouses. described as substantial. It adds that, Moreover the task of health inspections contrary to the Commission's assertion, is shared between the Community and it cannot be said that a Member State the United Kingdom. To achieve a "runs no risk" in importing milk from health control over milk comparable in another Member State. There is no degree to the inspections carried out on provision in the Treaty which requires a Argentinian meat would demand of the Member State to abandon its own system United Kingdom a disproportionate and for the protection of public health and to unreasonable effort, even if it were rely on the health criteria applied by accepted that the United Kingdom auth­ another Member State because certain orities would only control certain Member States may be content with a approved undertakings. Thus, for lower degree of protection. example it appears that the Union Laitière Normande controls 17 dairies supplied by nearly 40 000 producers, that is to say more than 2 300 farms per dairy. On that point, moreover, the United Kingdom observes that the health standards in force in the different Member States are not harmonized and they are, furthermore, observed and Irrespective of the question of the cost of enforced in varying degrees from one those controls, the practical difficulties Member State to another and from one would be considerable (approval pro­ region to another within a given Member cedure, settlement of possible disputes, State. In that connection, the United powers of the inspectors, etc.), would Kingdom Government states that, give rise to disparities between importers although the machines operating UHT and would reduce economic viability at a treatment of milk are similar in all the time when discussions are in progress at Member States, the health standards of Community level with a view to intro­ their production depend to a large extent ducing a Community system for the on their maintenance and their settings control of the production and marketing in accordance with standards which, here of milk. Furthermore, the United again, are variable and observed in Kingdom observes that such a system varying degrees. amounts, in fact, to re-establishing a system of licences prior to export analagous to the system contested by the Commission.

conditions is not exported. For that from entering the United Kingdom reason the United Kingdom Government market. Consequently the public is seeks to emphasize that it is the protected against a possible defective disparities in national laws and the treatment of the milk and at the same variable degree of their application in the time against the possibility that the milk different Member States, and not United was in an unsatisfactory condition prior Kingdom requirements, which are the to that treatment. The fact that that cause of the difficulties impeding the free requirement makes the importation of movement of UHT milk within the UHT milk impossible owing to the Community. The United Kingdom increased costs, which it entails, certainly explains that, whilst it is disposed to has the effect of creating a hindrance to admit the entry on to its territory of milk trade but that hindrance is, in the United merely on presentation of health certi­ Kingdom Government's view, justifiable ficates issued by other Member States in on grounds of public health under the context of the protection of animal Article 36 of the EEC Treaty. health, it cannot content itself with that safeguard, having regard to the disparities described above, when milk of foreign origin is involved which is For those reasons, the United Kingdom intended to be sold for human Government considers that, in the consumption. absence of common provisions, the measures which it has put into effect to ensure that UHT milk consumed on its territory is innocuous are justified under As regards the free importation of UHT the Treaty. cream and flavoured milk into the United Kingdom, the United Kingdom Government states that its authorities have initiated the consultations required to subject those products to the same 3. The Government of the French Republic system as milk and that "as these controls would now apply to both domestic and imported supplies of cream and flavoured milk" that measure could The French Government in its analysis of no longer be regarded as discriminatory. the United Kingdom legislation states Furthermore, the United Kingdom that it has the effect of: Government considers that the future regulations concerning cream and flavoured milk, which are prompted by the same requirements of public health as Requiring any importer wishing to the legislation applicable to UHT milk, import milk into the United Kingdom to are equally valid under Community law. have first obtained an import licence the object of which is to ensure the protection of animal health;

1. The French Government considers 2. The French Government acknow­ that the United Kingdom measures ledges that measures contrary to Article constitute two impenetrable barriers to 30 of the Treaty may nevertheless be the importation and marketing of milk of justified under Article 36 of the Treaty. foreign origin and it is undeniable that The French Government states however they directly and effectively hinder trade that reliance on the derogation contained between Member States. As such those in Article 36 is only permissible if two hindrances to the free movement of conditions are fulfilled: goods can only be described as measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty. The measures constituting a derogation must seek to achieve one of the legitimate purposes enumerated in that article; In that respect it emphasizes that the mere existence of those measures, even if it were assumed that they had no restrictive effect on trade, would, under The measures must be "justified", that is the case-law of the Court, per se be to say that it is satisfactorily shown that contrary to Article 30 of the Treaty. In those measures are necessary and do not fact, the requirement of an import constitute a disguised restriction on licence, which is issued only on pres­ trade. entation of a certificate attesting that the milk intended for importation has either been pasteurized or been heat-treated to 140° C for at least three seconds, comes within the definition of a measure having (a) In that connection the French equivalent effect, which "also applies to Government observes that it is incumbent the obligation to produce a certificate to upon the Member State seeking to the effect that the imported feedingstuffs invoke the derogation contained in have undergone specified treatment in Article 36 to demonstrate that reliance the exporting country", as was held in on that provision is justified. That results the judgment of the Court in the from the need to interpret that provision Denkavit case. The same applies to the strictly, since it is a provision authorizing requirement to repack and thus to re­ derogations from one of the foundations treat milk in an approved establishment of the Community, and confirmation of in the United Kingdom, which is a that view may be found in "the approach condition precedent to obtaining a adopted by the Court of Justice in a dealer's licence. The combined effect of number of cases", the most conclusive in

The French Government considers that the United Kingdom has not adduced any evidence to show that its health provisions are justified and that it rejects (b) Furthermore, the French Govern­ in advance any demonstration to ment considers that the United Kingdom convince it that the legitimate objective Government, far from showing that its of protecting animal and human health provisions are absolutely necessary and pursued by it could be achieved by other cannot be replaced by control procedures methods which are less restrictive. It which are less restrictive, confines itself notes that the United Kingdom, by to casting doubt on the methods stating at paragraph 65 of its defence employed and controls operated in the that, as regards the methods operated by other Member States and to an assertion other Member States, "it has no practical that no system of bilateral cooperation means of satisfying itself as to the is practicable and concludes that a adequacy of those methods" (to achieve complete re-treatment of the milk is the desired protection), gives to alone able to allay its fears regarding the understand that, even if a Member State protection of public health. agreed to provide the evidence that its production satisfied the United Kingdom criteria as to quality, that offer would be rejected as being pointless.

poor quality of products imported on the pasteurization, UHT sterilization, faith of health control certificates drawn packaging, warehousing and transport to up by the Member States in which those the points of sale and, finally, the products originate. offering for sale. It states, moreover, that observance of those provisions is enforced by regular checks carried out both by the Veterinary Department and the Food Hygiene Department of the For that reason the French Government Ministry of Agriculture and the Anti- considers that the United Kingdom, because it has not given any evidence for Fraud and Quality-Control Department its assertions, cannot be permitted to rely of the Ministry for Consumer Affairs upon Article 36 in order to justify a and, finally, that any breaches of those system for the protection of public health provisions are severely punished. which protects its market to an excessive degree and is in itself excessive.

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and Wales, the rate of negative tests was question whether, in practice, the 14% as regards dairies established in arguments of the United Kingdom ought England and Wales, which was more to be understood as revealing its than 10 times higher than the results of intention never to allow the sale for other producing countries, in particular human consumption in the United the Netherlands, France and the Federal Kingdom of imported UHT milk, even if Republic of Germany, where the it has been re-treated. equivalent rate was approximately 1.5%.

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health matters prevailing in the different products are not used to stop those Member States as regards milk to imports. demonstrate the unfounded and excessive nature of the measures laid down by the United Kingdom. 4. The United Kingdom Government

22-8

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French Government's view that all the production (approximately 25 % in the Member States operate and enforce case of UHT cream). equivalent systems of control.

2. As regards the nature of the system The United Kingdom does not accept of import licences operated, the United that this is so and considers that the Kingdom refers essentially to its earlier continuation in force of the measures documents for a description of that under challenge in this case is therefore system. It states however that the system justified until Community measures are consists essentially of specific import introduced since, as things stand, it is licences the conditions for the grant of impossible for it to know whether which vary according to the health adequate precautions have, in fact, been situation of the centre of production. taken in any particular case. The licence may be limited to one import transaction or may be for a limited period. Unless there is any change in the health situation of the centre of IV — Replies of the parties to production, no quality control of the the questions put by the imported milk is undertaken since it is Court covered by a licence.

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each of those States (except Italy and Certain Member States such as Greece), the health standards applicable Denmark, the Federal Republic of to UHT milk (treatment and packaging), Germany and Luxembourg also require which effectively are very similar. the production of a veterinary certificate by a veterinary surgeon of the exporting 3. As to the imports controls operated Member State certifying that the milk by the other Member States, the satisfies the conditions laid down. Commission sets out certain details of the various national provisions. It infers 4. Finally, the Commission states that from them that: the draft directives relating to the health conditions which heat-treated milk ought The United Kingdom is the only to meet have progressed with Member State to require a second disappointing slowness since 1972 and treatment of UHT milk; that there is no prospect of those drafts The United Kingdom and Ireland are the being adopted in the near future. only Member States to operate a system of import licences; V — Oral procedure The other Member States merely require UHT milk to have been treated The parties presented oral argument at according to certain hygiene standards. the sitting on 10 November 1982. The imported products are then tested The Advocate General delivered his by sampling in the same way as milk opinion at the sitting on 7 December produced domestically. 1982.

Decision

1 By an application lodged at the Court Registiy on 22 May 1981 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 30 of the EEC Treaty by placing restrictions on the importation of milk and cream treated by the UHT process and on the sale of those products in its territory .

(iii) Since the adoption of new regulations dealing with milk and cream in Northern Ireland (SR 1981 Nos 233 and 234) UHT milk and cream may only be offered for sale' in Northern Ireland if produced in accordance with the requirements in force in that province. Before those regulations came into force on 31 July 1981, all sales of UHT milk and cream were prohibited in Northern Ireland.

4 The Commission considers that the measures applied by the United Kingdom constitute measures having an effect equivalent to restrictions on imports prohibited by Article 30 and not justified under Article 36 of the Treaty.

The admissibility of the Commission's conclusions

5 In its application the Commission sought a declaration that the United, Kingdom had failed to fulfil its obligations under Article 30 solely in respect of the provisions applicable on 7 November 1980, the date of the reasoned opinion addressed to the United Kingdom pursuant to Article 169 of the

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Treaty. However, after that date the law was changed in Northern Ireland by the regulations of 1981 (SR 1981 Nos 233 and 234) made on 10 July 1981 and brought into force on 31 July 1981. The effect of those regulations was to substitute for a total prohibition on the sale of UHT milk and cream in Northern Ireland a system under which such sales are permitted only if the said products have been produced in accordance with the requirements of the regulations in force in Northern Ireland. In its reply the Commission requested that its applications for a declaration be extended to cover those new regulations. The admissibility of that request must be examined.

1. The contested provisions in general

s The United Kingdom contends that in the absence of common rules it is for the Member States to regulate all matters relating to the production and marketing of milk on their own territory and that therefore the contested national provisions relating to UHT milk and cream do not fall within the purview of Article 30 of the Treaty. That contention must be rejected. The absence of common rules or of harmonizing directives relating to the production or marketing of a product is not sufficient to prevent that product from falling within the scope of the prohibition laid down in Article 30 of the Treaty. The prohibition of measures having an effect equivalent to quantitative restrictions in fact applies to all trading rules of Member States capable of hindering, whether directly or indirectly, actually or potentially, intra-Community trade.

2. The requirement of a specific import licence

9 The Court has already held that Article 30 precludes the application to intra- Community trade of national provisions which require, even as a pure formality, import licences or any other similar procedure.

io The United Kingdom states that there is much flexibility in the grant of such import licences. However, the Court has consistently held (cf. judgments of 24 January 1978 in Case 82/77 van Tiggele [1978] ECR 25 and 19 February 1981 in Case 130/80 Keldermann [1981] ECR 527) that provisions caught by the prohibition laid down in Article 30 of the EEC Treaty do not escape that prohibition simply because the competent authority enjoys a discretionary power in the application of those provisions. Freedom of movement is a right whose enjoyment may not be dependent upon a discretionary power or on a concession granted by the national authorities.

is In that connection the United Kingdom states, first, that the system of specific import licences which it operates enables it to impose conditions as to the heat treatment of imported milk varying according to the disease status of the exporting country (heat treatment at a higher or lower temperature according to the time which has elapsed since the last outbreak of foot-and-mouth disease). The United Kingdom also stresses that cattle infected with foot-and-mouth disease may yield infected milk before the outward symptoms of the disease become evident and before the outbreak is discovered by the health authorities. In such a case the import licences would be granted in the normal way and the milk, having undergone a treatment insufficient to inactivate the virus, might already be in transit or actually imported into the United Kingdom before the disease had been identified. It is therefore necessary, in the United Kingdom's view, that its authorities should be able, as soon as they are informed of the situation by the exporting country, to trace the infected consignments and to destroy them before they reach the market. According to the United Kingdom, only a system of specific licences enabling consignments of imported milk to be identified and traced meets that requirement.

JUDGMENT OF 8. 2. 1983 — CASE 124/81

i6 Whilst the protection of the health of animals is one of the matters justifying the application of Article 36, it must none the less be ascertained whether the machinery employed in the present case by the United Kingdom constitutes a measure which is disproportionate in relation to the objective pursued, on the ground that the same result may be achieved by means of less restrictive measures, or whether, on the other hand, regard being had to the technical constraints already mentioned, such a system is necessary and hence justified under Article 36.

3. The system of dealers' licences and the requirement that imported UHT milk be packed on premises within the United Kingdom

20 It is not disputed that the regulations examined above, which require UHT milk imported into the United Kingdom to be packed on premises within the United Kingdom, make it necessary to treat that milk again, since it is technically impossible to open the packs and then repack the milk without causing it to lose the characteristics of "Ultra Heat Treated" milk.

2. Therefore the need to subject that product to a second heat treatment causes delays in the marketing cycle, involves the importer in considerable expense and, moreover, is likely to lower the organoleptic qualities of the milk. In fact, the requirement of re-treatment and repacking constitutes, owing to its economic effects, the equivalent of a total prohibition on imports, as the United Kingdom has expressly acknowledged. The United Kingdom is therefore wrong in its submission that the contested provisions, supposedly applying without distinction to domestic and imported products have no discriminatory effect and, for that reason, escape the application of Article 30 of the Treaty.

22 The Court therefore finds that the system of dealers' licences operated by the United Kingdom constitutes a measure having an effect equivalent to a quantitative restriction prohibited by Article 30 of the Treaty.

23 The United Kingdom claims however, that in the present state of Community law such a prohibition is the only effective means of protecting the health of consumers and is therefore justified under Article 36.

27 Thirdly, the very characteristics of UHT milk, which may be kept for long periods at normal temperatures, obviate the need for control over the whole production cycle of such milk if the necessary precautions are taken at the time of the heat treatment.

28 Under those circumstances, the United Kingdom, in its concern to protect the health of humans, could ensure safeguards equivalent to those which it has prescribed for its domestic production of UHT milk, without having recourse to the measures adopted, which amount to a total prohibition on imports.

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29 To that end, the United Kingdom would be entitled to lay down the objective conditions which it considers ought to be observed as regards the quality of the milk before treatment and as regards the methods of treating and packing UHT milk of whatever origin offered for sale on its territory. The United Kingdom could also stipulate that imported UHT milk must satisfy the requirements thus laid down, whilst however taking care not to go beyond that which is strictly necessary for the protection of the health of the consumer. It would be able to ensure that such requirements are satisfied by requesting importers to produce certificates issued for the purpose by the competent authorities of the exporting Member States.

so As the French Government correctly stated in its intervention in support of the Commission's application, the Court has consistently held (cf. judgment of 20. 5. 1976 in Case 104/75 De Peijper[1976] ECR 613 and 8. 11. 1979 in Case 251/78 Denkavit [1979] ECR 3369) that, where cooperation between the authorities of the Member States makes it possible to facilitate and simplify frontier checks, the authorities responsible for health inspections must ascertain whether the substantiating documents issued within the framework of that cooperation raise a presumption that the imported goods comply with the requirements of domestic health legislation thus enabling the checks carried out upon importation to be simplified. The Court considers that in the case of UHT milk the conditions are satisfied for there to be a presumption of accuracy in favour of the statements contained in such documents.

34 The legislation in question entails a complete prohibition on imports for sale and hence constitutes a restriction on trade prohibited by Article 30 of the Treaty.

35 It has neither been shown nor even alleged that those provisions were adopted out of a concern for the protection of public health. Therefore, they cannot be justified under Article 36 of the Treaty.

36 The Court concludes therefore that by adopting the various aforementioned provisions relating to the importation, packing and marketing of UHT milk the United Kingdom failed to fulfil its obligations under Articles 30 and 36 of the EEC Treaty.

Costs

37 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleading . Since the United Kingdom has failed in its submissions it must be ordered to pay the costs.

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4. Declares that, by prohibiting all sales of UHT milk or cream in Northern Ireland until the adoption of the new regulations on milk in 1981 (SR 1981 Nos 233 and 234), the United Kingdom failed to fulfil its obligations under Article 30 of the EEC Treaty;

5. Orders the United Kingdom to pay the costs.

Mertens de Wilmars Pescatore O'Keeffe Everling

Mackenzie Stuart Bosco Koopmans Due Galmot

Delivered in open court in Luxembourg on 8 February 1983.

P. Heim J. Mertens de Wilmars Registrar President